People v. Ortiz CA1/4 ( 2022 )

Filed 10/21/22 P. v. Ortiz CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A165255
v.
CHRISTOPHER WILLIAM ORTIZ, (Napa County
Super. Ct. No. 19CR002101)
Defendant and Appellant.
Defendant Christopher William Ortiz appeals from an order
terminating his probation and executing a previously imposed but suspended
three-year prison sentence for felony corporal injury. Appointed counsel has
filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende) in which no issues were raised. Having reviewed the record, we
modify the judgment to add a mandatory fine and victim restitution, and
direct the trial court to correct errors in the abstract of judgment to conform
with the trial court’s oral pronouncement of judgment. In all other respects,
the judgment is affirmed.
BACKGROUND
Ortiz was charged by information with one count of felony stalking
(Pen. Code,1 § 646.9, subd. (b)); three counts of misdemeanor contempt of
court (§ 166, subd. (c)(1)) for violating a protective order and/or stay away
order issued pursuant to section 136.2 in a pending criminal proceeding
involving domestic violence; one count of felony vandalism over $400 (§ 594,
subd. (b)(1)); and one count of felony corporal injury to spouse, cohabitant,
child’s parent, fiancé, former fiancé, dating relationship, or previous dating
relationship (§ 273.5, subd. (a)).
Ortiz pled no contest to count one for violating section 646.9, reduced to
a misdemeanor, and to felony corporal injury in violation of section 273.5,
subdivision (a). The trial court dismissed the other counts pursuant to a
Harvey waiver2, suspended execution of a three-year prison term, and placed
Ortiz on five years’ formal probation on the conditions, among others, that he
obey all laws and reasonable orders of the probation officer. Additionally, the
court ordered Ortiz to serve 160 days in county jail.
The court also ordered Ortiz to make restitution to the victim in an
amount to be determined and pay a $300 domestic violence fine (§ 1203.097,
subd. (a)(5)), a $300 fine to the battered woman’s shelter (§ 1203.097,
subd. (a)(11)(A)), a $300 restitution fine (§ 1202.4), a $300 restitution fine
suspended unless probation is revoked (§ 1202.44), a $80 court security fee
(§ 1465.8); and a $60 criminal conviction assessment (Gov. Code, § 70373).
In the following two years, the probation officer filed five separate
petitions to revoke probation alleging that Ortiz violated his probation. The
1 All further undesignated statutory references are to the Penal Code.
2 See People v. Harvey (1979) 25 Cal.3d 754.
2
first petition alleged that Ortiz failed to successfully complete a residential
program and to obtain the permission of the probation officer before leaving
the program. Based on those allegations, the court revoked Ortiz’s probation.
Ortiz waived a probation violation hearing and admitted that he was in
violation of probation as alleged in the first petition. The court reinstated
Ortiz’s probation on the same terms and conditions, with a modified condition
that Ortiz serve an additional 90 days in county jail.
The second and third petitions to revoke probation alleged that Ortiz
violated his probation on two separate occasions by failing to obey all laws,
violations he admitted. The trial court revoked and reinstated his probation
on the same terms and conditions without modification.
The fourth petition to revoke probation alleged that Ortiz failed to obey
all reasonable orders of the probation officer and failed to abide by all rules
and regulations of the Drug Court program. The trial court revoked Ortiz’s
probation and ordered him removed from the Drug Court program. The
probation officer subsequently amended the fourth petition to additionally
allege that Ortiz entered a place where alcohol is sold as a primary income of
the business.
A week later, after Ortiz was arrested for domestic battery, the
probation officer filed a fifth petition to revoke probation, alleging that he
failed to obey all laws and was in a place where alcohol is sold as the primary
income of the business. Ortiz admitted the amended fourth petition and the
fifth petition. The court set the matter for sentencing.
At the sentencing hearing, the court terminated Ortiz’s probation,
ordered into execution the previously imposed but suspended three-year
prison sentence, and awarded Ortiz 368 days of custody credit and 194 days
of conduct credit. The court also ordered him to pay a $300 restitution fine
3
and a $300 restitution fine suspended unless parole is revoked, and stated
that “[a]ny prior fines and fees remain in effect.”
Ortiz timely appealed from the order terminating his probation and
sentencing him.3
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and
requests this court to review the record and determine whether there are any
arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised
Ortiz of the right to file a supplemental brief within 30 days of the date of
filing of the opening brief. More than 30 days elapsed, and we received no
communication from Ortiz.
After independently reviewing the record, we have found several errors
in the judgment. First, the abstract of judgment does not accurately reflect
the trial court’s oral pronouncement. Where there is a discrepancy between
the oral pronouncement of judgment and the abstract of judgment, the oral
pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186;
People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
At the sentencing hearing, the trial court orally pronounced that “[a]ny
prior fines and fees remain in effect.” The abstract of judgment, however,
does not reflect all previously ordered fines and fees, including a $300
3 Having not obtained a certificate of probable cause, Ortiz properly
appeals only those matters occurring after his plea that do not affect the
validity of his plea. (§ 1237.5.) He is also prohibited from challenging the
validity of his admissions of probation violations. (People v. Sem (2014) 229
Cal.App.4th 1176, 1186–1187 [certificate of probable cause requirement
applies to admissions of probation violations].)
4
domestic violence fee (§ 1203.097, subd. (a)(5))4 and a $300 fine to the
battered woman’s shelter (§ 1203.097, subd. (a)(11)(A)) the trial court
imposed as conditions of Ortiz’s probation. The trial court’s general reference
to prior fees and fines in its oral pronouncement of the sentence was proper,
but after oral pronouncement occurs, “ ‘[t]he responsibility then falls to the
trial court clerk to specify the penalties and surcharges in appropriate
amounts in the minutes, and more importantly, the abstract of judgment.’ ”
(People v. Voit (2011) 200 Cal.App.4th 1353, 1373; see also People v. High
(2004) 119 Cal.App.4th 1192, 1200 [“All fines and fees must be set forth in
the abstract of judgment”].) The minute order confirms that previous fees are
to remain in effect, but it does not separately identify those fees and their
amounts. Therefore, we will direct the trial court to correct both the minute
order and the abstract of judgment accordingly.
Moreover, the abstract of judgment lists incorrect amounts for
assessments the trial court previously imposed under section 1465.8 and
Government Code section 70373. When it placed Ortiz on probation, the trial
court imposed a $80 court security fee and a $60 conviction assessment
pursuant to those sections, amounts that properly accounted for Ortiz’s two
convictions. (§ 1465.8, subd. (a)(1) [“an assessment of forty dollars ($40) shall
be imposed on every conviction for a criminal offense . . . ,” italics added]; Gov.
4 We note that the trial court, when it imposed the domestic violence
fee as a condition of Ortiz’s probation, reduced the amount of the fine below
the statutory minimum. Under section 1203.097, subdivision (a)(5)(A), the
defendant is to make a minimum payment of $500, and if the court exercises
its discretion to reduce the fee, “it shall state the reason on the record.” Here,
the trial court imposed a $300 fee under section 1203.097, subdivision (a)(5),
but failed to state its reason for reducing the fee on the record. Nonetheless,
the prosecution did not object, and thus any objection to that omission was
waived. (People v. Tillman (2000) 22 Cal.4th 300, 302–303.)
5
Code, § 70373, subd. (a)(1) [“an assessment shall be imposed on every
conviction for a criminal offense” in the amount of $30 for a felony or
misdemeanor, italics added].) The abstract of judgment, however, reflects a
$40 court security fee and a $30 conviction assessment. Accordingly, we will
order the trial court to amend the abstract of judgment to impose a $80 court
security fee under section 1465.8 and a $60 criminal conviction assessment
under Government Code section 70373 to conform with the trial court’s oral
pronouncement.5
Second, upon revocation of probation, the trial court was required to lift
the stay on the probation revocation restitution fine under section 1202.44, as
imposition of that fine is mandatory once probation has been revoked. (People
v. Guiffre (2008) 167 Cal.App.4th 430, 434.) Here, the court, after revoking
Ortiz’s probation, did not lift the stay on the $300 probation revocation
restitution fine, and neither the abstract of judgment nor the minute order
list the fine. The judgment should therefore be modified to reflect imposition
of the $300 probation revocation fine.
Third, the section for victim restitution in section 5 in the abstract of
judgment form was left blank but should reflect the victim restitution
5 We note that because the abstract of judgment reflects only Ortiz’s
felony conviction, listing the assessments in amounts accounting for both of
his convictions may give the appearance that those assessments were
improperly doubled. Nonetheless, there is no authority requiring an abstract
of judgment to list a misdemeanor conviction. The abstract of judgment is
“the order sending the defendant to prison and ‘the process and authority for
carrying the judgment and sentence into effect.’ ” (In re Black (1967) 66
Cal.2d 881, 890.) But as noted above, there is authority requiring a court to
list all fees, fines, and assessments in the abstract of judgment. (People v.
High, supra, 119 Cal.App.4th at p. 1200.) Moreover, while the abstract of
judgment forms do not provide entries for misdemeanor offenses, the forms
provide an entry for “other orders” where the trial court could presumably list
the fines and fees for misdemeanor convictions.
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previously imposed as a condition of Ortiz’s probation. (People v. Kleinman
(2004) 123 Cal.App.4th 1476, 1481 [“Having voluntarily agreed to the terms
of probation, a defendant cannot use his own breach of those terms as a basis
for evading the properly imposed restitution obligation he assumed”].)
Although the trial court did not mention the previously-ordered victim
restitution in its oral pronouncement revoking probation, victim restitution
under section 1202.4 is mandatory, “and a sentence without a restitution
award is invalid.” (Id. at pp. 1480–1481.) We may correct the legally
unauthorized sentence. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413–
1415.)
Having undertaken an examination of the entire record, we find no
arguable error that would result in a disposition more favorable to Ortiz.
DISPOSITION
The judgment is modified to impose a $300 probation revocation
restitution fine under section 1202.44 and victim restitution in an amount to
be determined. The trial court is directed to correct the minute order and the
abstract of judgment to reflect all fines, fees, and assessments imposed by the
trial court and the correct amount and statutory basis for each. A certified
copy of the amended abstract of judgment is to be forwarded to the
Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
GOLDMAN, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
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